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Subject: A Non-Owner Being On the HOA Board?
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Author Messages
AlexL1
(Florida)

Posts:305


11/30/2009 4:01 PM  
There is a situation arising now and that is that one person who is living in a condo unit that belongs to a relative of that person. The actual owner never attends the meetings even though he lives 5 or so miles away. That person has now requested (in writing)that that relative living in his condo be allowed to represent him on all matters and that that person be given consideration to be appointed to be on the HOA Board. Several stop-gaps to that. The CC&Rs state that Board members shall consist of unit owners. That is one element of this and the second element is that that relative who wants to be on the HOA BOD is VERY VERY controversial and if the Board turns down the request of that person's relative(who is the owner of the unit)there will be considerable problems. Thirdly, we fear that if it is accepted for that relative to be on the Board (against the CC&Rs), it will open a door for anyone who is not an owner to be on the Board. Has anyone ever had a similar situation? I could find nothing in the SEARCH part.
DeeS1
(Michigan)

Posts:223


11/30/2009 4:14 PM  
It is fairly common for CCRs to allow non-homeowners to be on the board. Ours allow members, agents, and employees. If your CCRs say that it must be unit owners, it is fairly clear ... he can not serve on your board (or likely represent the actual Homeowner on any matter unless "members" are defined differently).

I would think there are a couple of options you could present to the homeowner: 1)Quit-claim the relative onto the title to make him an owner or 2) suggest he petition for an amendment to the rules to allow non-unit owners to be on the board.

If your bylaws do not allow non-owners, you have no choice but to deny the request regardless of the considerable problems. I would assume that even if the homeowner went to all the work to make things legitimate, that your board still needs to be elected. If this person is controversial, do you think he/she would still be able to get elected?
MicheleD
(Kentucky)

Posts:4491


11/30/2009 4:42 PM  
Posted By AlexL1 on 11/30/2009 4:01 PM
There is a situation arising now and that is that one person who is living in a condo unit that belongs to a relative of that person. The actual owner never attends the meetings even though he lives 5 or so miles away. That person has now requested (in writing)that that relative living in his condo be allowed to represent him on all matters and that that person be given consideration to be appointed to be on the HOA Board. Several stop-gaps to that. The CC&Rs state that Board members shall consist of unit owners. That is one element of this and the second element is that that relative who wants to be on the HOA BOD is VERY VERY controversial and if the Board turns down the request of that person's relative(who is the owner of the unit)there will be considerable problems. Thirdly, we fear that if it is accepted for that relative to be on the Board (against the CC&Rs), it will open a door for anyone who is not an owner to be on the Board. Has anyone ever had a similar situation? I could find nothing in the SEARCH part.

Alex, with all due respect, if your governing documents say "only owners" can be board members, then the letter requesting that the relative "represent" the owner cannot serve to circumvent the covenant.

It is what it is, regardless of how "controversial" (or contrary or domineering) the owner is.

You cannot "waive" or "bend" the rules just to avoid conflict. The covenants exist for a reason and everyone, including the owner who wants to send in the relative, agreed to them when he took title of his unit.

Were I a member of your association, if you even contemplated "allowing" a non-owner be on the board against the covenants, I would be inciting a challenge so fast it would make your head spin.

Keep in mind, our documents allow non-owners and non-association members to be on our board of directors.

But yours does not. You have a special duty to protect the integrity of the documents.

Now, Dee had an excellent potential solution.

Write the owner back and let him know, politely, that regardless of whatever documents he provides requesting the relative be allowed to run for the board, you must respectfully decline that request, in accordance with the covenants, until such time as the document the relative presents is a Quit Claim Deed showing the relative's name on the title.

The other document you can accept would be, as Dee points out, a properly petitioned, voted on, and passed amendment that allows non-members to be on the board.


RogerB
(Colorado)

Posts:4888


11/30/2009 9:53 PM  
Alex, you stated "The CC&Rs state that Board members shall consist of unit owners." Therefore, only owner are allowed to serve on the Board - PERIOD. As to representing the owner at meetings the Bylaws should address this and usually they allow an officially designated person to represent the owner unless your state laws do not allow proxies.
TimB4
(Virginia)

Posts:9247


12/01/2009 3:49 AM  
Posted By AlexL1 on 11/30/2009 4:01 PM
That person has now requested (in writing)that that relative living in his condo be allowed to represent him on all matters




No problem there. This is just a permanent proxy appointment.


Posted By AlexL1 on 11/30/2009 4:01 PM
The CC&Rs state that Board members shall consist of unit owners.





This is simple enough. A polite reply stating that the Board will annotate that this person is a proxy but per the CC&Rs (quote them) he/she can not be considered for a position on the board. However you will keep them in mind for committees.



QUESTION:

Who verifies that the people nominated for the board are actually on the Deed and thereby an owner? Many couples do not place the home in both names. If you enforce the CC&Rs [and you should] you will probably need to establish procedures to verify eligibility to be on the board.


Tim
DennisT
(Ohio)

Posts:109


12/01/2009 4:10 AM  
Posted By TimB4 on 12/01/2009 3:49 AM

Who verifies that the people nominated for the board are actually on the Deed and thereby an owner? Many couples do not place the home in both names. If you enforce the CC&Rs [and you should] you will probably need to establish procedures to verify eligibility to be on the board.




It's a bit more complicated than that. In states like Ohio there is no requirement to re-deed the property to reflect both names after a marriage yet under the law the non-named spouse is automatically considered to be a joint owner regardless of how the deed may be titled. So in our case if a couple was married and at least one name was on the deed we had to treat the spouse as an equal owner. Then you have people whose homes are owned by trusts that they control. That's a while separate topic.
GlenL
(Ohio)

Posts:5160


12/01/2009 5:15 AM  
Who verifies that the people nominated for the board are actually on the Deed and thereby an owner? Many couples do not place the home in both names. If you enforce the CC&Rs [and you should] you will probably need to establish procedures to verify eligibility to be on the board. Tim




Tim trust me there are enough busy bodies in almost any community willing to search on-line for who is on the deed, especially if the person running is not well liked.

"Common sense is like deodorant--the people who need it most never use it."
MaryA1


Posts:0


12/01/2009 1:59 PM  
Dennis,

I've never heard of such a law. Can you point me to it? I'm very interested to read it. I've always been of the opinion that only if your name is on the deed can you be considered an owner. What if the husband doesn't want his wife to be joint-owner of the property?
TimB4
(Virginia)

Posts:9247


12/01/2009 3:39 PM  
Posted By GlenL on 12/01/2009 5:15 AM

Tim trust me there are enough busy bodies in almost any community willing to search on-line for who is on the deed, especially if the person running is not well liked.





Glen,

Sad but true.


RichardP13
(California)

Posts:1661


12/03/2009 10:33 PM  
Can I get someone's opinion here.

This is from our CCR's
Section 21.1 Management Responsibility. The management an d complete control of the Association's affairs and the Project itself will be the direct responsibility of the Board of Directors, which is to consist of the Members of the Association who will be elected by the total membership of the Association.

This is from our By-Laws
Section 6.2 Number and Qualifications of Director The Board shall consist of five (5) directors until changed by amendment to this section of the By-Laws. Directors need not be Members of the Association.

If a current director is not an owner and was appointed by the current board, is the appointment proper? And since the two documents conflicts, which document should be in force?

Thank you
GlenL
(Ohio)

Posts:5160


12/04/2009 12:42 AM  
Richard somewhere in your documents the order should be spelled out, in ours it states that if there is a conflict between the By-Laws and the Covenants the Covenants prevail.

Now this is just a WAG (wild a**ed guess) but that was more than likely put in the by-laws to cover the Declarant's Board members when it was under Declarant control unless there is a separate paragraph you didn't post exempting them.

"Common sense is like deodorant--the people who need it most never use it."
RichardP13
(California)

Posts:1661


12/04/2009 11:49 AM  
Glen

Is this what I ma looking for?

Article 10 Declaration of Establishment of Conditions, Covants and Restrictions

The provisions of the Declaration are hereby incorporated herein by this reference. In the event of a conflict between the provisions of these by-laws and the provision of the said Declaration, the provisions of the DEclaration shall prevail.
GlenL
(Ohio)

Posts:5160


12/04/2009 12:21 PM  
That's it.

"Common sense is like deodorant--the people who need it most never use it."
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